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In part one of this article, we looked at whether employers have to seek references when recruiting, whether there’s a legal obligation for a previous employer to give a reference to their ex-employee, and whether a new employer withdraw a job offer on receipt of a bad reference. Read on for more information on professional references.
In addition, an employer, when providing a reference, is likely to access personal data, which falls under the General Data Protection Regulations 2018.
Therefore, the employer must satisfy one of the conditions required for processing data and when giving references – the most likely condition to apply is that the individual employee has consented to the data being processed. Confirming dates of employment and length of service and probably salary should not be a problem as this is factual information, even though it is of course ‘personal data’ of an employee, but confirming an employees attendance records, or disciplinary records may require specific consent from the employee which may be hard or impossible to achieve, as under GPDR, consent must be voluntary, explicit and informed.
The Code isn’t legally binding, but can be taken into account by a Court or Tribunal if there’s a complaint. This Code has not yet been updated for GDPR (September 2018).
The prospective employer could send the previous employer a photocopy of the individual’s signed consent to its seeking the reference, in the reference request. This will normally be sufficient for the previous employer to process the personal data.
If the previous employer has any doubts about whether or not the employee has given consent to the reference, they should contact the employee to check. The employer should obtain their consent in writing if possible, or should at least make a note of the individual’s verbal consent.
The employer must not provide sensitive personal or special category data in a reference, for example information about the individual’s health, race or trade union membership, without first obtaining the employee’s explicit consent.
To obtain the individual’s explicit consent, the employer should write to him or her, asking for their written consent to the request and clearly stating:
References should also be marked ‘confidential’ and for the attention of the addressee only.
Many employers add a disclaimer to the reference, stating that they can’t accept any liability for errors or omissions in the content of the reference. A disclaimer will be effective only if it’s reasonable. If the employer has, or would be expected to have, direct knowledge of the information provided, it’s unlikely to be able to rely on a disclaimer if the reference contains information that’s not true, accurate and fair.
With the introduction of the GDPR, the position that many Employers now take, when giving references for ex-employees, may become more prevalent – it is easier to decline to give a reference, because you are not processing data, if you do not provide any information!
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.